Before getting started on this week’s blog entry, I do want to wish everyone that might be celebrating the Jewish New Year next week a happy new year. Also, because I am one of the people celebrating the Jewish new year and will have family responsibilities all week, I am not anticipating putting up a blog entry for next week. I do anticipate getting a blog entry up the early part of the following week.
The Department of Health and Human Services just issued proposed regulations implementing the Affordable Care Act and dealing with nondiscrimination in health programs and activities. What I thought I would do is highlight the proposed regulations with respect to disability discrimination (the regulations go far beyond disability discrimination-such as even talking about transgender issues-but our focus is going to be solely on disability discrimination). So here goes! I have the blog entry divided into two sections. In the first section, I highlight the disability discrimination provisions of the proposed regulations. In the second section, I list takeaways. I suppose it is possible that the reader could just focus on the takeaway section without looking at the proposed regulations highlight, but I am not sure the reader will want to do that. Nevertheless, the option is there.
1. The proposed regulations implement this statute, which prohibits discrimination on the basis of various things, including disability, in any health program or activity receiving federal financial assistance.
2. Remedies for violations with respect to disability discrimination are tied into the Rehabilitation Act;
3. The effective date of the Affordable Care Act’s implementing regulations dealing with nondiscrimination will be 60 days after publication of the final rule in the Federal Register;
4. Health and Human Services is proposing to apply the nondiscrimination regulations to the following: all health programs and activities, any part of which receives federal financial assistance administered by Health and Human Services; health programs and activities administered by the Department including federally-facilitated marketplaces; and health programs and activities administered by entities established under title I of the Affordable Care Act, including state base marketplaces.
5. Lesser standard for the protection of individuals from discrimination under civil rights laws, including § 504 are not going to happen with respect to the nondiscrimination protections offered by the Affordable Care Act.
6. Auxiliary aids and services have the same definition as contained in the regulations implementing title II of the ADA.
7. The proposed regulations cover: an entity that operates a health program or activity, any part of which receives federal financial assistance; an entity established under title I of the Affordable Care Act that administers a health program or activity; and the Department of Health and Human Services.
I do find the use of the term “and,” a bit funny here. It would seem that “or,” would have been a better fit. I don’t think it matters much, but it theoretically creates a problem of interpretation that didn’t need to be there.
8. A person with a disability is defined in the same manner as under the ADA and under the Rehabilitation Act.
9. “Federal financial assistance,” extends to the entity providing health insurance coverage or services, regardless of whether they are paid directly by the federal government to that entity or to the individual for remittance to the entity providing health insurance coverage or services. This means that if a person is buying coverage under a plan through a subsidy from the federal government, the plan will be deemed to be receiving federal financial assistance even though the plan is not receiving the money directly from the federal government.
10. If an entity has 15 or more employees, the proposed regulations require the entity to have a grievance procedure. Further, they are taking comment on whether a grievance procedure should be mandatory regardless of the size of the employer.
This one I found very interesting because it illustrates a difference between the ADA implementing regulations and the Rehabilitation Act implementing regulations. Under title II of the ADA, 28 C.F.R. § 35.107, a grievance procedure is required if the public entity has 50 or more employees. However, the Rehabilitation Act has a different requirement, 15 employees per 45 C.F.R. § 84.7.
11. A notice requirement exists and the notice must include: a statement that the covered entity does not discriminate on the basis of disability among other things; a statement that the covered entity provides auxiliary aids and services free of charge in a timely manner for individuals with disabilities when such aids and services are necessary to provide an individual with a disability an equal opportunity to benefit from the entity’s health programs or activities; information on how the individual can access the aids and services; contact information for the responsible employee; information about the grievance procedure and information on how to file a grievance; and information on how to file complaint with the Office of Civil Rights of the Department of Health and Human Services.
12. Except in limited circumstances, the proposed regulations do not apply to discrimination by a covered entity against its own employees. Rather, such cases are governed by other laws. The limited circumstances are: the entity is principally engaged in providing for administering health services or health insurance coverage; the entity receives federal financial assistance the primary objective of which is to fund the entity’s employee health benefit program; or the entity is not principally engaged in providing or administering health services or health insurance coverage but operates a health program or activity, which is not an employee health benefit program, that received federal financial assistance (in that particular situation, the regulation applies only with respect to the employee health benefits offered to employees in that health program or activity). In short, the Affordable Care Act nondiscrimination provision only applies to an employer’s employees if the primary purpose of the federal financial assistance is funding employee health benefits regardless of whether the employee health benefit program is self-insured or fully insured by the employer.
13. Prohibits a covered entity from requiring an individual with limited English proficiency to provide his or her own interpreter.
14. Prohibits a covered entity from relying on a minor child to interpret or facilitate communication with limited exceptions (an emergency situation for example).
15. Adopts the effective communication rules of title II of the ADA, which we have discussed here.
16. Establishes specific accessibility standards for new construction and alterations consistent with existing standards under the ADA. The specific guidelines to use depend upon when the facility is constructed or modified.
17. Medical diagnostic equipment will have to be accessible to persons with disabilities under the standards developed by the United States Access Board.
18. Health programs or activities provided through electronic and information technology must be accessible to individuals with disabilities per title II of the ADA unless it would impose undue financial and administrative burdens or result in a fundamental alteration in the nature of an entity’s health program or activities. This particular provision extends beyond the covered entity’s website to all of the covered entity’s electronic and information technology. Health and Human Services specifically seeks comment on that extension.
19. As readers of this blog know, the Department of Justice is insisting upon accessibility of electronic communications to be in accordance with worldwide web accessibility guidelines 2.0. The other option was for the Department to require electronic communications be consistent with § 508 of the Rehabilitation Act. What is interesting is that Health and Human Services decides to go with a general nondiscrimination approach rather than adopt either of these standards and then solicit comment as to whether they should forgo the general nondiscrimination approach in favor § 508 or worldwide accessibility guidelines 2.0.
20. In determining whether an action is an undue burden, covered entity must consider ALL (emphasis mine), of the resources available for use in the funding for operation of the health program or activity. Where an undue financial and administrative burden or a fundamental alteration exists, the covered entity is still required to provide information in a format other than an accessible electronic format that would not result in the undue financial or administrative burden or the fundamental alteration. The focus on all of the resources is consistent with both the EEOC regulations implementing title I of the ADA and the Department of Justice regulations implementing title II of the ADA. Is that the proper focus? Justice Ginsburg in Olmstead has some interesting views to consider on that.
21. Reasonable modifications in policies, practices, or procedures must be made in order to allow a person with a disability access unless a fundamental alteration to the health program or activity is involved.
22. Health and human services is proposing that the rule apply to all issuers receiving federal financial assistance regardless of whether their products are offered through the marketplace, outside the marketplace, an individual or group health insurance markets, or as an employee health benefit program through an employer-sponsored group health plan.
23. Plans are not required to cover any particular benefit or service, but their plan cannot operate in a discriminatory manner with respect to their coverage.
24. The proposed regulations prohibit discrimination based upon association with a member of a protected class, including a person with a disability.
25. A private cause of action and damages exist for violation of the law per § 504 of the Rehabilitation Act. Venue will lie in a United States District Court where the state-based marketplace is located. Since remedies are tied into § 504 the Rehabilitation Act, presumably, exhaustion of administrative remedies is not required. My view on these things is that it is always better to exhaust administrative remedies even if not required, but it isn’t necessary to do so. Since remedies are tied into the Rehabilitation Act, that makes you wonder how causation will be determined. The Affordable Care Act nondiscrimination statute relates back to the Rehabilitation Act and contains no causation language whatsoever.
26. Retaliation is prohibited, but can you get compensatory damages?
27. Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to policies, practices, or procedures, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of aids, benefit, or services offered or provided by the health program or activity.
The definition essentially borrows from the title II definition of what a qualified individual with a disability is except it pacifically references health programs and activities due to the context. This does mean you want to be sure the client understands what the essential eligibility requirements are of the program. See this blog entry for example.
28. Qualified interpreter means an interpreter adhering to generally accepted interpreter ethical principles, including client confidentiality and who, via remote interpreting service or on-site is able (for an individual with a disability), to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters can include sign language interpreters, oral transliterator’s, and choose language transliterators.
29. Entities subject to the proposed regulations must assure Health and Human Services that they will comply with the nondiscrimination requirements.
30. Health and Human Services has the ability to go after covered entities for violations.
1. Lawyers familiar with title II of the ADA should have little trouble dealing with the Affordable Care Act’s nondiscrimination regulations.
2. Essential eligibility requirements are critical. For some thoughts on how you might go about developing essential eligibility requirements, check out this blog entry.
3. The proposed regulations clearly specify that retaliation is prohibited and is a separate cause of action, but can you get damages for such violations? It isn’t necessarily a straightforward question with respect to disability discrimination as we discussed in this blog entry.
4. The Affordable Care Act’s nondiscrimination statute contains no causation language whatsoever. Rather, it relates back to various laws. With respect to disability discrimination, it relates back to the Rehabilitation Act. That leads to the strong argument that causation with respect to disability discrimination under the Affordable Care Act’s nondiscrimination statute is going to be, “solely by reason of.” That means it is entirely possible that depending upon the particular plaintiff suing for violation of the Affordable Care Act’s nondiscrimination provision, the causation standard may well be different from plaintiff the plaintiff even though the same nondiscrimination provision of the Affordable Care Act is at issue. For a discussion of causation vis-à-vis disability discrimination, check out this blog entry.
5. If you haven’t become familiar with the effective communication rule of title II of the ADA, now would be a good time to do so. An excellent discussion of that rule can be found in this blog entry.
6. It is interesting that the Department of Health and Human Services is not taking the stance on the standard for web accessibility, though they might in the future depending upon the comments. The bottom line is regardless of whether your company adopts § 508 or web accessibility guidelines 2.0, make sure your company gets its electronic communications accessible to persons with disabilities. Also, make sure you involve people and groups across all disabilities. For example, just because something is accessible to those using screen readers doesn’t necessarily make it accessible to those using voice dictation technology.